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California Rules on Ethics of Social Media Postings

Would you consider it ethical for a lawyer to post the following to a social media site such as Facebook:

“Another great victory in court today! My client is delighted. Who wants to be next?”

In California, that post would violate the Rules of Professional Conduct, according to a recent ethics opinion issued by the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. The opinion, issued late in December, considered the following issue:

Under what circumstances would an attorney’s postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?

More specifically, it considered five actual posts by an attorney to a social media site that, although not identified as such, sounds to have been Facebook. According to the opinion, the site was one where “only individuals whom the Attorney has approved to view her personal page may view this content.” It went on to say that the attorney had about 500 approved contacts, or “friends,” who were a mix of personal and professional acquaintances, “including some persons whom Attorney does not even know.”

The ethics panel hinged its analysis on Rule 1-400 of California’s Rules of Professional Conduct. For that rule to apply to social media postings, two conditions would have to apply, the panel said:

There would have to be a “communication,” which the panel suggested should apply in the broadest sense of the word.

The communication would have to concern the lawyer’s “availability for professional employment.”

With regard to the post that I quoted above, the panel said that, had the attorney simply said, “Another great victory in court today,” then Rule 1-400 would not have applied. “However, the addition of the text, ‘[w]ho wants to be next?’ meets the definition of a ‘communication’ because it suggests availability for professional employment.”

Having found that the statement was subject to the rule, the panel went on to say that it violated the ethical rule concerning client testimonials.

An attorney cannot disseminate “communications” that contain testimonials about or endorsements of a member unless the communication also contains an express disclaimer. … Attorney has not included a disclaimer, so her status posting is presumed to violate rule 1-400.

The statement further violated ethical rules, the panel said, because it includes “guarantees, warranties, or predictions regarding the result of the representation.” “The post expressly relates to a ‘victory,'” the panel explained, “and could be interpreted as asking who wants to be the next victorious client.”

Here are the other statements the panel considered. See if you can predict how they ruled:

“Case finally over. Unanimous verdict! Celebrating tonight.”

“Won a million dollar verdict. Tell your friends and check out my website.”

“Won another personal injury case. Call me for a free consultation.”

“Just published an article on wage and hour breaks. Let me know if you would like a copy.”

OK, got your answers down? Here is what the panel said:

Not a communication under the rule. “Attorney status postings that simply announce recent victories without an accompanying offer about the availability for professional employment generally will not qualify as a communication.”

A communication cover d by the rule.

A communication covered by the rule, thanks to the second sentence.

Not covered by the rule. “The attorney is merely relaying information regarding an article that she has published, and is offering to provide copies.”

The ethics panel concludes its opinion with this summary:

Attorney may post information about her practice on Facebook, Twitter, or other social media websites, but those postings may be subject to compliance with rule 1-400 if their content can be considered to be “concerning the availability for professional employment.” Such communications also may be subject to the relevant sections of California Business and Professions Code sections 6157 et seq.

My summary would be a bit shorter: “Be careful what you post out there!”